李淑如

中文摘要

為解決爆炸性訴訟案件增加之現況，訴訟外紛爭解決機制 （ADR）近年來成為我國司法院積極推動的制度。然近年來因電 子商務發達、跨境交易行為增加，伴隨而來交易紛爭層出不窮， 產生傳統行政機關消費者保護工作面臨上述交易行為無法及時管 理、回應之困窘。而司法機關面對消費者糾紛審理審判，除了線 上消費常見因屬微損型、擴散型交易訴諸ADR 及民事訴訟程序 其所受損失與實現正義的過程所付出的成本顯失比例外，若形成 集體訴訟，也常因電子商務之消費訴訟被告在境外無法具體審查 個案情形，造成消費者無法求償、獲得司法公平的賠償，更使有 心人士帶著僥倖的心理利用此漏洞，反覆地進行不法交易，從中 獲得不法利益，導致消費者對於電子交易市場的秩序與信心崩 解。為解決此類問題，歐盟提出更具時效性的線上紛爭解決機制 （ODR），使得民事契約自由、私法自治的秩序，提升到自律、 他律的境界，亦不侵害人民因不服替代紛爭解決結果應享有的訴 訟權。本文就ODR 的基本概念、發展背景、演進過程、基本及 推廣功能，個人資料保護適用、德國入內國法的演進歷程與概念 應用狀況、我國消費爭議現況、我國現有的ODR 機制以及對於 我國發展ODR 的期待與想像做一個相當的說明，以一窺民間與 政府共同攜手建構更安全的網際網路消費市場的可能。

Research on Online Dispute Resolution Mechanism -Starting from the Regulation on Consumer ODR of EU and Germany, and insights for Taiwan

Shu-Ju Lee

abstract

In the era of emerging e-commerce and improvised information technology more consumers are shopping online, purchasing goods domestically and from other countries. However, in recent years, ecommerce transactions have increased, and it should come as no surprise, too, the number of cross-border disputes has increased correspondingly. What is more, E-commerce offers immense challenges to traditional dispute resolution methods, as it entails parties often located in different parts of the world making contracts with each other at the click of a mouse. And when disputes involve individuals or shops based in different countries, those involved are often confronted with an array of such complex legal issues in various jurisdictions, and the consumer protection law may not be the same in all countries. Moreover the use of traditional litigation for solving online disputes over a purchase made online is in general time-consuming, expensive, impractical and inconvenient due to the low value of the transactions and the physical distance between the parties to the contract. So for that reason, Alternative Dispute Resolution (ADR) and particularly Online Dispute Resolution (ODR) have become a relevant issue for the online customer protection. ODR is a form of online settlement that uses alternative methods for dispute resolution (ADR) and takes advantage of the speed and convenience of the Internet, becoming the simply and fast way for improving consumer redress and strengthening customer trust and confidence in e-commerce. In the European Union, ADR and ODR procedures can take different forms and they can have different names, e.g. mediation, ombudsmen. In conclusion, facilitating cross-border e-commerce, and strengthening consumers' trust when shopping online is also the key issues for the EU, and promoting access to efficient and effective redress mechanisms through alternative dispute resolution procedures has been identified as a way to achieve this goal. So, the legal basis of the online dispute resolution is the Directive 2013/11/EU on alternative dispute resolution in consumer matters (ADR-Directive) as well as the EU-Regulation No. 524/2013 of the European Parliament and the Council of 21.05.2013 on the online dispute resolution in consumer matters (ODR-regulation). Since 2016 the EU provide online dispute resolution platform to achieve an independent, impartial, transparent, effective, fast and fair, out-of-court resolution of disputes between consumers and online traders. As it is apparent that ODR is at an infant stage in Taiwan, this article extracts guidelines from European Union and Germany as a basis for understanding the concept and development of ODR, then offering a comprehensive and up to date analysis of the development of ODR, particularly the international approach to extra-judicial consumer redress (the UNCITRAL draft rules on ODR), and learn experiences and some aspects from the Regulation on consumer ODR adopted by EU and the German Consumer Dispute Resolution Act (VSBG). In light of the above, this article appreciates the need of working towards the implementation of ODR within Taiwan to emphasize on the importance of using ODR as a new way for solving e-commerce disputes. ODR makes the law more accessible to consumers involved in an e-commerce dispute, which as a result reinforces consumer trust in e-commerce transactions.